LAWS OF DELAWARE
VOLUME 83
CHAPTER 330
151st GENERAL ASSEMBLY
FORMERLY
HOUSE BILL NO. 423
AS AMENDED BY
HOUSE AMENDMENT NO. 1
AN ACT TO AMEND TITLES 11, 16, 24, AND 29 OF THE DELAWARE CODE RELATING TO BACKGROUND CHECKS FOR FIREARMS SALE, TRANSFER, OR CONCEALED CARRY PERMIT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend
Chapter 85, Title
11 of the
Delaware Code by
making deletions as
shown by strike
through and insertions
as shown by
underline as follows:
Subchapter VI. Firearm
Transaction Approval Program
(FTAP). Criminal Background Check for Public School Related Employment [Repealed].
§ 8570. Purpose
and intent. Definitions [Repealed].
The purpose and
intent of this
subchapter is to
establish the Delaware
Firearm Transaction Approval
Program that is compliant
with the federal
Brady Act, P.L.
103-159, 107 Stat.
1536, 18 U.S.C.
§ 921 et
seq., and to
make this State
a federally-compliant point
of contact state
in conjunction with
the federal National
Instant Criminal Background
Check System.
§ 8571. Definitions.
Screening procedure required [Repealed].
As used in
this subchapter:
(1) “FBI” means
the Federal Bureau
of Investigation.
(2) “Federal firearms
licensee” or “FFL”
means a person
licensed by the
federal Bureau of
Alcohol, Tobacco, Firearms,
and Explosives as
a manufacturer, importer,
or dealer of firearms.
(3) “Firearm” means
as defined under
18 U.S.C. §
921(a)(3).
(4) “Licensed dealer”
means as defined
under 27 C.F.R.
§ 178.11.
(5) “Licensed importer”
means as defined
under 27 C.F.R.
§ 178.11.
(6) “Licensed manufacturer”
means as defined
under 27 C.F.R.
§ 178.11.
(7) “National Crime
Information Center” or
“NCIC” means the
nationwide computerized
federal information system of
criminal justice data
established by the
FBI as a
service to local,
state, and federal
criminal justice agencies.
(8) “NICS” means
the National Instant
Criminal Background Check
System.
(9) “NICS POC”
means as point of
contact is defined under
this section.
(10) “NICS POC
Guidelines” means the
guidelines established
and published by
the federal government
for the operation and
implementation of the
NICS program by
a POC agency.
(11) “Point of
contact” or “POC”
means a state
or local law
enforcement agency serving
as an intermediary between
an FFL and
the federal databases
checked by NICS.
(12) “SBI” means
the State Bureau
of Identification of
the Delaware State
Police.
§ 8572. SBI
as point of
contact for NICS, entity
to conduct required
background checks. Penalties [Repealed].
(a)(1) The SBI
shall serve as
the NICS POC
for this State.
(2) Except as
provided by other
laws of this
State, SBI’s NICS
POC operations are
governed by and
shall strictly adhere
to 28 C.F.R.
Part 25 and
the NICS POC
Guidelines.
(b) The SBI
shall conduct background
checks required for
the lawful sale,
transfer, or delivery
of firearms under
federal law and the law of this State, including under §§ 1448A and 1448B of this title, that occur within this State.
(c)(1) The SBI shall establish
a toll-free telephone number that must be operational
between the hours of 9:00 a.m. and 9:00
p.m. local time,
Monday through Saturday,
and 9:00 a.m.
and 5:00 p.m.
local time, Sunday,
to respond to
inquiries from FFLs for background checks required under subsection (b) of this section. The SBI may establish another electronic means to respond to inquiries from FFLs for background checks required under subsection (b) of this section in addition to a toll-free telephone number.
(2) Notwithstanding paragraph
(c)(1) of this
section, the telephone
number may, but
need not be,
operational on Thanksgiving Day, Christmas
Day, Good Friday, or on
Easter Sunday.
(3) The SBI
shall employ and
maintain personnel as
necessary to effectively
and efficiently administer
this subchapter and to
otherwise effectively
serve as this
State’s federal NICS
POC.
(d) On receipt
of a request
for a background
check required under
paragraph (c)(1) of
this section, SBI
shall do all of
the following:
(1) Transmit a
request for a
background check to
the Federal Bureau
of Investigation, NICS
Section, and search other
available databases to
determine if the
potential buyer or
transferee is prohibited
from receipt or possession
of a firearm under
§ 1448 of this
title or federal
law.
(2) After receipt
of a response
from the Federal
Bureau of Investigation,
NICS Section, and
the completion of its
search of other
available databases, inform
the FFL making
the inquiry or the
of 1 of
the following:
a. That the potential buyer or transferee is prohibited
from receipt or possession of a firearm under §
1448 of this title
or federal law.
b. That the
FFL may proceed
with the sale,
transfer, or delivery
of the firearm
may proceed with the
process for issuing
a license to
carry concealed deadly
weapons. SBI shall
provide the FFL
with a unique
approval number.
(e) If electronic
failure or similar
emergency beyond the
control of the
SBI occurs, the
SBI shall immediately notify
a requesting FFL
of the reason
for, and estimated
length of, the
delay. After a
notification under this
subsection, the SBI
shall inform the
FFL making the
inquiry of 1
of the following
no later than the end
of the third
business day following a
request for a
background check by
the FFL:
(1) That the
potential buyer or
transferee is prohibited
from receipt or
possession of a
firearm under §
1448 of this title
or federal law.
(2) That the FFL may proceed with the sale, transfer, or delivery of the firearm. SBI shall provide the FFL with a unique approval number.
(f) The SBI
may promulgate regulations
necessary to administer
and enforce this section.
§ 8573. Confidentiality
of NICS check
and POC records.
(a) The SBI
is responsible for
maintaining the security,
integrity, and confidentiality of
all information and records pertaining
to the Firearm
Transaction Approval Program.
The SBI may share such information and records with another state or federal law enforcement agency or the Judicial Information Center in order to carry out its functions under §§ 8572 and 8574 of this title.
(b) As this
State’s designated NICS
POC, the SBI
shall strictly adhere
to the federal
regulations pertaining
to the confidentiality and
security of NICS
information including
28 C.F.R. §
25.6, § 25.7,
§ 25.8, §
25.9, and §
25.11.
(c)(1)The SBI
may promulgate regulations
consistent with 28
C.F.R. Part 25
to ensure the
security, integrity, and confidentiality
of all information
and records coming
into its custody
under the Firearm
Transaction Approval Program.
(2) Regulations under
this section may
protect the privacy
and confidentiality of
this State’s citizens
to a greater
extent than federal law.
(d) Nothing in
this subchapter may
be construed to
allow the State
to maintain records
containing the names
of FFLs who receive
unique approval numbers
or to maintain
records of firearm
transactions, including
the names or
other identification of
FFLs and potential
buyers or transferees,
involving individuals
who are not
prohibited by §
1448 of this title
or federal law
from the receipt
or possession of
firearms for longer than 6 months. However,
the SBI may
retain whatever information
it receives including the identifying
information of a potential
buyer or transferee
if the SBI has
reasonable cause to believe
the potential buyer or
transferee is committing
a crime. Nothing in this paragraph may be construed to be a waiver of sovereign immunity.
(e) The Superior Court
has exclusive jurisdiction
over a violation of
subsection (d) of this section.
§ 8574. Procedure
and remedies upon
denial.
(a) An individual
who is denied
the right to
receive or purchase
a firearm under
this subchapter may
do 1 or
more of the following:
(1) Request from
the SBI a
written explanation for
the denial.
(2) Petition the
SBI to amend
erroneous information
in a record
pertaining to the
individual.
(b) SBI shall respond to a request for a written explanation for the denial under paragraph (a)(1) within 30 days of receipt of the request.
(c) On receipt
of a petition
under paragraph (a)(2)
of this section, the
SBI shall do
all of the following:
(1) Perform a
thorough review of
the records that
prompted the denial.
(2) Render, within 30
days of receipt of
the petition, a final
decision regarding the denial.
If exceptional circumstances exist, SBI may extend the deadline to file a final decision for an additional 30 days with notice to the petitioner providing the exceptional circumstances.
(d) If the
SBI reverses its
denial, the SBI
shall immediately do
all of the
following:
(1) Request that
an entity that
provided it with
information that prompted
its denial amend
its records to reflect
accurate information.
(2) Amend its
records to reflect
accurate information.
(3) Destroy records
it maintains which
contain erroneous information
derived from a
background check conducted
under this subchapter.
(e) If the SBI upholds it denial, the individual may appeal the decision to the Superior Court on the record.
(e)(1) If the
SBI fails to
issue a decision
on a petition
under paragraph (a)(2)
of this section
within the time requirements in paragraph (c)(2) of this section, the
individual may petition
the Superior Court
for a writ
of mandamus to compel the issuance of the decision.
(2) If the SBI fails to amend its records to reflect accurate information under paragraph (d) of this section, the individual may petition the Superior Court for a writ of mandamus to require the SBI to correct its records.
(3) If the
Superior Court determines
that the SBI
wilfully refused to issue its decision or
amend the record,
the Court may
award the petitioner costs
and reasonable attorneys’
fees.
Section 2. Amend
§ 1448A, Title
11 of the
Delaware Code by
making deletions as
shown by strike
through and insertions
as shown by
underline as follows:
§ 1448A. Criminal
history record Background
checks for sales
of firearms.
(a) No A
licensed importer, licensed
manufacturer manufacturer,
or licensed dealer
shall may not
sell, transfer transfer,
or deliver from
inventory any firearm,
as defined in
§ 222 §
8571 of this
title, to any
other person, other
than a licensed importer,
licensed manufacturer,
licensed dealer, or
licensed collector, without
conducting a criminal
history background check
in accordance with
regulations promulgated
by the United
States Department of
Justice pursuant to
the National Instant Criminal
Background Check System
(“NICS”), 28 C.F.R.
§§ 25.1-25.11, as
the same may
be amended from time
to time, background
check by the
State Bureau of
Identification, through
the Firearm Transaction
Approval Program under
Subchapter VI of
Chapter 85 of
this title, to
determine whether the
transfer of a
firearm to any
person who is not
licensed under 18
U.S.C. § 923 would
be in violation
of federal or
state law.
(b) No A
licensed importer, licensed
manufacturer manufacturer,
or licensed dealer
shall may not
sell, transfer transfer,
or deliver from
inventory any firearm,
as defined in
§ 222 §
8571 of this
title, to any
other person, other
than a licensed importer,
licensed manufacturer,
licensed dealer, or
licensed collector, unless
and until being
informed that it
may “proceed” with the
sale, transfer transfer,
or delivery from
inventory of a
firearm by the
Federal Bureau of
Investigation (FBI), NICS
Section pursuant to
the request for
a criminal history
record check required
by the State
Bureau of Identification,
through the Firearm
Transaction Approval Program
under Subchapter VI
of Chapter 85
of this title, following
a request for a background check
under subsection (a) of this section
or 25 days have elapsed
from the date of the request
for a background check and
a denial has
not occurred.
(c) Any person
who is denied
the right to
receive or purchase
a firearm in
connection with subsection
(a) of this section
or § 1448B(a)
of this title
may request from
the Federal Bureau
of Investigation a
written explanation for
such denial; an appeal
of the denial
based on the
accuracy of the
record upon which
the denial is
based; and/or that
erroneous information on
the NICS system
be corrected and
that the person’s
rights to possess
a firearm be
restored. All requests pursuant
to this subsection
(c) shall be
made in accordance
with applicable federal
laws and regulations,
including without limitation
28 C.F.R. §
25.10. In connection
herewith, at the
request of a
denied person, the
Federal Firearms Licensed (FFL)
dealer and SBI
shall provide to
the denied person
such information as
may be required
by federal law
or regulation in order
for such person
to appeal or
seek additional information
hereunder. [Repealed.]
(d) Compliance with
the provisions of
this section shall
be is a
complete defense to
any claim or
cause of action under
the laws of
this State for
liability for damages
arising from the
importation or manufacture
of any firearm
which has been shipped
or transported in
interstate or foreign
commerce. In addition, compliance
with the provisions
of this section
or § 1448B of
this title, as
the case may
be, shall be
is a complete
defense to any
claim or cause
of action under
the laws of this
State for liability
for damages allegedly
arising from the
actions of the
transferee subsequent
to the date
of said the
compliance wherein the
claim for damages
is factually connected
to said the
compliant transfer.
(e) The provisions
of this section
shall This section
does not apply
to: to any
of the following:
(1) Any firearm
(including firearm, including
any firearm with
a matchlock, flintlock,
percussion cap, or similar
type of ignition
system) system manufactured in
or before 1898;
1898.
(2) Any replica
of any firearm
described in paragraph
(e)(1) of this
section if such
replica: the replica
meets 1 of the following:
a. Is not
designed or redesigned
to use rimfire
or conventional centerfire
fixed ammunition; or
ammunition.
b. Uses rimfire
or conventional centerfire
fixed ammunition which
is no longer
manufactured in the United
States and which
is not readily
available in the
ordinary channels of
commercial trade; trade.
(3) Any shotgun,
which is defined
as a firearm
designed or intended
to be fired
from the shoulder
and designed or made to fire through a smooth
bore either a number of ball
shot or a single projectile
for each single pull of the trigger;
trigger.
(4) The return,
by a licensed
pawnbroker, of a
firearm to the
person from whom
it was received;
received.
(5) Transactions in
which the potential
buyer or transferee
holds a valid
concealed deadly weapons
license pursuant to
under §§ 1441,
1441A 1441A, and
1441B of this
title; and title.
(6) Transactions involving
a “law-enforcement officer”
as defined by
§ 222 of
this title.
(f) Any licensed
dealer, licensed manufacturer,
licensed importer importer,
or employee thereof
who wilfully and intentionally
requests a criminal
history record check
from the Federal
Bureau of Investigation,
NICS background check from
the State Bureau
of Identification, through
the Firearm Transaction
Approval Program under
Subchapter VI of Chapter 85 of this title,
for any purpose other than
compliance with subsection (a)
of this section section,
or § 1441(a)(1) or § 1448B(a)
of this title,
or wilfully and
intentionally disseminates
any criminal history
record information from
the background check to
any person other
than the subject
of such information
or discloses to
any person the
unique identification number
shall be is
guilty of a
class A misdemeanor.
The Superior Court
shall have has
exclusive jurisdiction for
all offenses under
this subsection.
(g) Any person
who, in connection
with the purchase,
transfer, or attempted
purchase or transfer
of a firearm pursuant
to subsection (a)
of this section
or § 1448B(a)
of this title,
wilfully and intentionally
makes any materially
false oral or written
statement or wilfully
and intentionally furnishes
or exhibits any
false identification intended
or likely to deceive
the licensee shall
be is guilty
of a class
G felony.
(h) Any licensed
dealer, licensed manufacturer,
licensed importer or
employee thereof who
wilfully and intentionally
sells or delivers
a firearm in
violation of this
section shall be
is guilty of
a class A
misdemeanor. Second A second
or subsequent offenses
offense by an
individual shall be
is a class
G felony. The
Superior Court has
exclusive jurisdiction for
all offenses under
this subsection.
(i) The SBI
shall provide to
the judiciary committees
of the Senate
and House of
Representatives an annual
report including the number
of inquiries made
pursuant to under
this section and
§ 1448B of
this title for
the prior calendar
year.
Such report shall
include, but not
be limited to,
The report must
include the number
of inquiries received
from licensees, the number
of inquiries resulting
in a determination
that the potential
buyer or transferee
was prohibited from
receipt or possession
of a firearm
pursuant to §§
1448 and 1448B
under § 1448
of this title
or federal law.
law, and the
estimated costs of administering
the Firearm Transaction
Approval Program under
Subchapter VI of
Chapter 85 of
this title.
(j) Notwithstanding Chapter
89 of this
title, Chapter 10 of
Title 29, and
other Delaware laws,
laws of this
State, the SBI is
authorized and directed
to shall release
records and data
required by this
section and by
§ 1448B of
this title. The SBI
shall may not
release or disclose
criminal records or
data except as
specified in this
section and in
§ 1448B of
this title.
(k) No records,
Records, data, information
information, or reports
containing the name,
address, date of birth
birth, or other
identifying data of
either the transferor
or transferee or
which contain the
make, model, caliber,
serial number number,
or other identifying data of any firearm
which are required, authorized
authorized, or maintained
pursuant to under this
section, § 1448B
of this title
title, or by
Chapter 9 of
Title 24, shall
be are not
subject to disclosure
or release pursuant to
under the Freedom
of Information Act,
Chapter 100 of
Title 29.
(l) Relief from
Disabilities Program.
— A person
who is subject
to the disabilities
of 18 U.S.C.
§ 922(d)(4) and (g)(4)
or of §
1448(a)(2) of this
title, except a
person subject to
an order for
relinquishment under §
1448C(d)(1) of this title,
because of an
adjudication or commitment
under the laws
of this State
may petition for
relief from a
firearms prohibition from
the Relief from
Disabilities Board. The
Relief from Disabilities
Board shall be
comprised of 3
members, with the chairperson
appointed by and
serving at the
pleasure of the
Secretary of Safety
and Homeland Security,
and 2 members appointed
by and serving
at the pleasure
of the Secretary
of the Department
of Health and
Social Services, 1
of whom shall be
a licensed psychiatrist.
(1) The Board
shall consider the
petition for relief
in accordance with
all of the
following:
a. The Board
shall give the
petitioner the opportunity
to present evidence
to the Board
in a closed
and confidential hearing on
the record; and
record.
b. A The
Board shall maintain
a record of
the hearing shall
be maintained by
the Board for
purposes of appellate
review.
(2) In determining
whether to grant
relief, the Board
shall consider evidence regarding
all of the
following:
a. The circumstances
regarding the firearms
disabilities pursuant
to § 1448(a)(2)
of this title
and 18 212 U.S.C.
§ 922(d)(4) and (g)(4);
(g)(4).
b. The petitioner’s
record, which must
include, at a
minimum, the petitioner’s
mental health record, including
a certificate of
a medical doctor
or psychiatrist licensed
in this State
that the person
is no longer suffering
from a mental
disorder which interferes
or handicaps the
person from handling
deadly weapons; weapons.
c. Criminal history records;
and records.
d. The petitioner’s
reputation as evidenced
through character witness
statements, testimony,
or other character evidence.
(3) The Board
shall have the
authority to require
that the petitioner
undergo a clinical
evaluation and risk assessment,
which it may
also consider as
evidence in determining
whether to approve or
deny the petition
for relief.
(4) After a
hearing on the
record, the Board
shall grant relief
if it finds,
by a preponderance
of the evidence,
that: all of
the following apply:
a. The petitioner
will not be
likely to act
in a manner
dangerous to public
safety; and safety.
b. Granting the
relief will not
be contrary to
the public interest.
(5) The Board
shall issue its decision
in writing explaining
the reasons for
a denial or
grant of relief.
(6) Any person
whose petition for
relief has been
denied by the
Relief from Disabilities
Board shall have
has a right to
a de novo
judicial review in
the Superior Court.
The Superior Court
shall consider the
record of the
Board hearing on the
petition for relief,
the decision of
the Board, and,
at the Court’s
discretion, any additional
evidence it deems necessary
to conduct its
review.
(7) Upon On
notice that a
petition for relief
has been granted,
the Department of
Safety and Homeland Security
shall, as soon
as practicable: practicable,
do both of
the following:
a. Cause the
petitioner’s record to
be updated, corrected,
modified, or removed
from any database maintained
and made available
to NICS and
SBI to reflect
that the petitioner
is no longer
subject to a
firearms prohibition as
it relates to
§ 1448(a)(2) of
this title and
18 U.S.C. §
922(d)(4) and (g)(4);
and (g)(4).
b. Notify the
Attorney General of
the United States
and the Attorney
General of this
State that the petitioner
is no longer
subject to a
firearms prohibition pursuant
to under §
1448(a)(2) of this
title and 18
U.S.C. § 922(d)(4) and
(g)(4).
(m) The Department
of Safety and
Homeland Security The
SBI shall adopt
regulations regulations,
consistent with federal law,
relating to compliance
with NICS, including
without limitation issues
relating to the
transmission of data,
the transfer of existing
data in the
existing state criminal
background check database
database, and the
relief from disabilities process
set forth in
subsection (k) under
subsection (l)
of this section.
In preparing such
regulations, the Department
the SBI shall consult
with the Department
of Health and
Social Services, the
courts, the Department
of Children, Youth
and Their Families, the
Department of State
State, and such
other entities as
may be necessary
or advisable. Such
regulations shall Regulations
adopted under this
section must include
provisions to ensure
the identity, confidentiality
confidentiality, and security
of all records
and data provided
pursuant to under
this section.
Section 3. Amend
§ 1448B, Title
11 of the
Delaware Code by
making deletions as
shown by strike
through and insertions
as shown by
underline as follows:
§ 1448B. Criminal
history record Background
checks for sales
of firearms —
Unlicensed persons.
(a) No An
unlicensed person shall
may not sell
or transfer any
firearm, as defined
in § 222
of this title,
firearm to any other
unlicensed person without
having conducted a
criminal history background
check through a
licensed firearms dealer
in accordance with
§ 1448A of
this title and
§ 904A of
Title 24, as
the same may
be amended from
time to time,
Title 24 to
determine whether the
sale or transfer
would be in
violation of federal
or state law,
and until the
licensed firearms dealer
has been informed
that the sale
or transfer of
the firearm may
“proceed” by the
Federal Bureau of Investigation,
NICS Section the
State Bureau of
Identification, through
the Firearm Transaction
Approval Program under Subchapter
VI of Chapter
85 of this
title or 25
days have elapsed
from the date
of the request
for a background
check and a denial has not occurred.
(b) For purposes
of this section:
(1) “Licensed dealer”
means any person
licensed as a
deadly weapons dealer
pursuant to under
Chapter 9 of Title
24 and 18
U.S.C. § 921 et
seq.
(2) “Firearm” means
as defined under
§ 8571 of
Title 11.
(3) “Prospective buyer”
includes a prospective
transferee.
(4) “Prospective seller”
includes a prospective
transferor.
(2) (5) “Transfer”
means assigning, pledging,
leasing, loaning, giving
away, or otherwise
disposing of, but does
not include: include
any of the
following:
a. The loan
of a firearm
for any lawful
purpose, for a
period of 14
days or less,
by the owner
of said the firearm
to a person
known personally to him
or her; the owner.
b. A temporary
transfer for any
lawful purpose that
occurs while in
the continuous presence
of the owner of
the firearm, provided
that such if
the temporary transfer
shall does not
exceed 24 hours
in duration; duration.
c. The transfer
of a firearm
for repair, service
service, or modification
to a licensed
gunsmith or other person
lawfully engaged in such
activities as a regular
course of trade
or business; or
business.
d. A transfer that occurs by
operation of law or because of the death of a person for
whom the prospective transferor is
an executor or
administrator of an
estate or a
trustee of a
trust created in
a will.
(3) (6) “Unlicensed
person” means any
person who is
not a licensed
importer, licensed manufacturer
or licensed dealer.
(c) The provisions
of this This
section shall does
not apply to:
to any of
the following:
(1) Transactions in
which the potential
purchaser or transferee
prospective buyer is a
parent, mother-in-law,
father-in-law, stepparent, legal guardian, grandparent,
child, daughter-in-law,
son-in-law, stepchild, grandchild,
sibling, sister-in-law, brother-in-law, spouse,
or civil union
partner of the
seller or transferor;
transferor.
(2) Any firearm
(including firearm, including
any firearm with
a matchlock, flintlock,
percussion cap, or similar
type of ignition
system) system, manufactured in
or before 1898;
1898.
(3) Any replica
of any firearm
described in paragraph
(c)(2) of this
section if such
replica: the replica
meets 1 of the following:
a. Is not
designed or redesigned
to use rimfire
or conventional centerfire
fixed ammunition; or
ammunition.
b. Uses rimfire
or conventional centerfire
fixed ammunition which
is no longer
manufactured in the United
States and which
is not readily
available in the
ordinary channels of
commercial trade; trade.
(4) Any muzzle-loading
firearm designed for
hunting or competitive
shooting not requiring
a criminal background
check pursuant to
federal law; under
federal law.
(5) Transactions in
which the potential
purchaser or transferee
prospective buyer is a
qualified law-enforcement
officer, as defined in
§ 1441A of
this title, or
a qualified retired law-enforcement
officer, as defined
in § 1441B
of this title;
title.
(6) Transactions in
which the potential
purchaser or transferee
prospective buyer holds a
current and valid
concealed carry permit
issued by the
Superior Court of
the State of
Delaware pursuant to under
§ 1441 of
this title.
(7) Transactions in
which the prospective
buyer or transferee
is a bona
fide member or
adherent of an organized
church or religious
group, the tenets
of which prohibit
photographic identification;
provided, however, that no
unlicensed person shall
identification. Notwithstanding
this paragraph (c)(7),
an unlicensed person may
not sell or
transfer any firearm
to any such
person the prospective
buyer without having
conducted a criminal
history background check
in accordance with
conducted under subsection
(f) of this
section hereunder to determine
whether the sale
or transfer would
be in violation
of federal or
state law; law.
(8) Transactions involving
the sale or
transfer of a
curio or relic
to a licensed
collector, as such
terms are defined in
27 C.F.R. 478.11,
as the same
may be amended
from time to
time; § 478.11.
(9) Transactions involving
the sale or
transfer of a
firearm to an
authorized representative
of the State
or any subdivision thereof
as part of
an authorized voluntary
gun buyback program.
(d) Notwithstanding anything
to the contrary
herein, no fee
for a criminal
history in this
section, a fee
for a background
check may not
be charged for
the return of
a firearm to
its owner that
has been repaired,
serviced serviced, or modified
by a licensed
gunsmith or other
person lawfully engaged
in such activities
as a regular course
of trade or
business.
(e) Any person
who knowingly sells
or transfers a
firearm in violation
of this section
shall be is
guilty of a
class A misdemeanor. Any subsequent offense
shall be is a class
G felony. The Superior Court shall have
has exclusive jurisdiction for
all offenses under
this section.
(f) The State
Bureau of Investigation
Identification (the “Bureau”)
shall facilitate the
sale or transfer
of any firearm in
which the prospective
buyer is a
bona fide member
or adherent of
an organized church
or religious group,
the tenets of which
prohibit photographic
identification, pursuant to
the following procedure.
For purposes of
this subsection, the
terms “prospective buyer”
and “prospective seller”
shall include prospective
transferors and prospective
transferees, respectively.
under the following procedure:
(1) The prospective
buyer and prospective
seller shall jointly
appear at the
State Bureau of
Investigation Bureau during regular
hours of business,
and shall inform
the Bureau of
their desire to
avail themselves of
the procedure set
forth herein. this section.
The actual cost
of the criminal
history background check
shall must be
paid by either
the prospective buyer
or prospective seller.
(2) The prospective
buyer shall be
required to submit
fingerprints and other
necessary information
in order to obtain
a report of
the individual’s entire
criminal history record
pursuant to the
Federal Bureau of
Investigation appropriation of
Title II of
Public Law 92-544
(28 U.S.C. § 534).
to complete a
background check under
the Firearm Transaction
Approval Program under
Subchapter VI of
Chapter 85 of
this title. In
addition, the prospective
buyer shall submit to the Bureau
a signed affidavit stating
that photographic identification
conflicts with the tenets of an organized church
or religious group of
which the prospective
buyer is a
bona fide member.
(3) In the
event that said
background check If
the background check
under paragraph (f)(2)
of this section
reveals that the
prospective buyer is
prohibited from possessing,
purchasing purchasing,
or owning a
firearm, the Bureau shall
so inform both
parties the prospective
buyer and prospective
seller of that
fact and the
transfer shall may
not take place.
(4) The Bureau
shall maintain a
record of all
background checks conducted
under this section
to the same extent
as is required
of licensed dealers
pursuant to under
Chapter 9 of
Title 24.
(5) The Bureau
is hereby authorized
to may promulgate
such reasonable forms
and regulations regulations consistent
with federal law, as
may be necessary or desirable to effectuate
the provisions of administer
and enforce this subsection.
Section 4. Amend § 1455, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 1455. Engaging in a firearms transaction on behalf of another; class E felony; class C felony.
(a) A person is guilty of engaging in a firearms transaction on behalf of another when the person purchases or obtains a firearm on behalf of a person not qualified to legally purchase, own or possess a firearm in this State or for the purpose of selling, giving or otherwise transferring a firearm to a person not legally qualified to purchase, own or possess a firearm in this State.
(b) Engaging in a firearms transaction on behalf of another is a class E felony for the first offense, and a class C felony for each subsequent like offense.
(c)(1) A federal firearms licensee who suspects a person engaged in a firearms transaction may be violating this section may alert SBI through the same hotline established under § 8572 of this title for background checks.
(2) Upon receiving notice of a possible transaction in violation of this section, SBI shall forward information relating to the transaction to the appropriate law enforcement agency for further investigation.
Section 5. Amend § 5161,
Title 16 of
the Delaware Code
by making deletions
as shown by
strike through and insertions
as shown by
underline as follows:
§ 5161. Rights
of patients in
mental health hospitals
or residential centers.
(b) Any hospital
or residential center
that admits persons
pursuant to Chapter
50, 51, or
55 of this
title shall prominently
post in English
and Spanish the
list of patient
rights set forth
in this subsection.
In addition to
the posting, the Department
shall distribute a
copy of the
list to each
patient and to
other persons, as
provided in Department
regulations.
Each patient shall
have the rights
listed below, which
shall be liberally
construed to fulfill
their beneficial purposes.
Furthermore, in defining
the scope or
extent of any
duty imposed by
this section, higher
or more comprehensive obligations established
by otherwise applicable
federal, state, or
local enactments as
well as certification
standards of accrediting agencies
may be considered.
(14) The Delaware
Psychiatric Center and
any other hospital
as defined in
§ 5001(9) of
this title shall,
pursuant to under
§ 1448A of
Title 11, cause
to be submitted
to the Federal
Bureau of Investigation,
National Instant Criminal
Background Check System
such the State
Bureau of Identification
(SBI) information as
may be required
to comply with federal
laws and regulations
relating to background
checks for the
purchase or transfer
of firearms. Such information shall
The information must
include only names and
other nonclinical identifying
information of persons
so committed. The SBI
shall transmit the information,
as may be
required by law, to
the FBI for
use in its
National Instant Criminal
Background Check System
(NICS).
Section 6. Amend
§ 904A, Title
24 of the
Delaware Code by
making deletions as
shown by strike
through and insertions
as shown by
underline as follows:
§ 904A. Criminal
history Background checks
for sales between
unlicensed persons.
(a) For purposes
of this section,
section:
(1) “licensed firearm
dealer” “Dealer” means
any person licensed
as a deadly
weapons dealer pursuant
to Chapter 9 of
Title 24 under
this chapter and
18 U.S.C. §
921 et seq.
(2) “Firearm” means
as defined under
§ 8571 of
Title 11.
(3) “Prospective buyer”
includes a prospective
transferee.
(4) “Prospective seller”
includes a prospective
transferor.
(5) “Transfer” means
as defined under
§ 1448B of
Title 11.
(6) “Unlicensed person”
means as defined under
§ 1448B of
Title 11.
(b) As a
condition of its
license, any dealer
holding a license
pursuant to under
this chapter shall
facilitate the transfer
of a firearm,
as that term
is defined in
§ 222 of
Title 11, firearm
from any unlicensed
person as that
term is defined in
§ 1448B of
Title 11, upon
on the request
of said the
unlicensed person, pursuant to
through the following
procedure:
(1) The prospective
buyer and prospective
seller shall jointly
appear at the
place of business
of the dealer,
during said the
dealer’s regular hours
of business, and
shall inform the
dealer of their
desire to avail
themselves of the
advantages of the procedure
set forth herein.
this subsection.
(2) The dealer
shall then subject
the prospective buyer
to a criminal
history background check
pursuant to the terms
of background check
under § 1448A
of Title 11.
(3) In the
event that said
record check If
the background check
under paragraph (b)(2)
of this section
reveals that the prospective
buyer is prohibited
from possessing, purchasing
purchasing, or owning
a firearm pursuant
to under §
1448 of Title
11, the dealer
shall so inform
both parties the
prospective buyer and prospective
seller of that
fact and the
transfer shall may
not take place.
(4) The dealer
shall maintain a
record of all
criminal history background
checks conducted under
this section in accordance
with § 904
of this title.
(5) Any dealer
who is asked
to facilitate the
transfer of a
firearm pursuant to
the terms of
under this section, may
charge a reasonable
fee for said
the service, said
fee which may
not to exceed
$30 per criminal
history background check
performed pursuant to
this procedure. under
this section. Notwithstanding
the foregoing, no
a fee may
not be charged for
the return of
a firearm to
its owner in
the event that
if the proposed
transaction may not be
immediately and legally completed
as the result,
or lack thereof,
of a criminal
history background check
hereunder. under this subsection.
(6) Failure or
refusal on the
part of the
dealer to facilitate
the transfer of
a firearm pursuant
to the procedures set
forth herein shall
be under this
subsection is adequate
cause to suspend
the license of
said the dealer
for a period
not to exceed 30 days
per occurrence.
(7) Subject to
subchapter IV of
Chapter 101 of
Title 29, no
a dealer’s license
shall may not
be restricted, suspended
suspended, or revoked
until a license
holder the dealer
has been given
notice, notice and
an opportunity to be
heard in accordance
with the Administrative
Procedures Act (Chapter
101 of Title
29).
(c) Nothing in
this section, or
any other section
of the Code,
shall authorize or
permit authorizes or
permits the State or
any agency, department
department, or instrumentality
thereof to establish
any system for
the registration of firearms,
firearm owners, or
firearm transactions or
dispositions, except with
respect to persons
prohibited from receiving
a firearm as set
forth in under
Chapter 5 of
Title 11. Any
such system of registration
is expressly prohibited.
Section 7. Amend
§ 9017, Title
29 of the
Delaware Code by
making deletions as
shown by strike
through and insertions
as shown by
underline as follows:
§ 9017. Confidential
Information.
(c) The Department
shall cause to
be submitted to
the Federal Bureau
of Investigation, National
Instant Criminal
Background Check System
such the State
Bureau of Identification (SBI)
information as may
be required to
comply with federal laws
and regulations relating
to background checks
for the purchase
and transfer of
firearms. Such information
shall The information must
include only names
and other nonclinical
identifying information. The SBI shall
transmit the information, as
may be required
by law, to
the FBI for
use in its
National Instant Criminal
Background Check System
(NICS).
Section 8. This
Act is effective
upon enactment and
is to be
implemented the earlier
of the following:
(1) One year from
the date of
the Act’s enactment.
(2) On notice
by the Secretary
of the Department
of Safety and
Homeland Security published
in the Register of
Regulations that the
State Bureau of
Identification has notified
all licensed importers,
licensed manufacturers,
and licensed dealers in
this State in
writing that any
final regulations deemed
necessary by the
Secretary to implement
this Act have been
promulgated and the
toll-free number required
under § 8572
of Title 11
of the Delaware
Code is operational.
Approved June 30, 2022